Gladden v. American Mortgage Co. , 80 Ala. 270 ( 1885 )

SOMERVILLE, J.

It is contended that the decree of the chancellor in this case should be reversed, among other reasons, because it is based on a decree pro confesso taken without proper service on Mrs. Gladden, who is a married woman, and one of the defendants to the bill, her husband being the sole remaining co-defendant.

The amended return of the sheriff shows that the summons or sxibposna was served upon the husband for the wife, and not personally upon the latter. This is in precise accordance with Rule No. 22 of Chancery Practice, which- provides that “ married women may be made defendants by service of summons to answer upon their husbands, if residents and living together; if living apart, by personal service on each;” except where the separate estate of the wife is the object of the bill, and then the summons is required to be served on her personally. — Code, 1876, pp. 164-5. This rule is, in substance, the same as that which long prevailed under the English system of equity practice. — 1 Dan. Ch. Pr. 445. It does not conflict with the provisions of the statute as embodied in sections 3763-64 of the present Code of 1876, which have reference to service upon other defendants than married women. The present suit has no relation to the wife’s separate estate. The property conveyed by the mortgage sought to be foreclosed is the property of the husband, the only interest of the wife in it being a mere inchoate or contingent right of dower. The recitals of the mortgage, which is an exhibit to the bill, sufficiently show by admission the relationship of the defendants as husband and wife, and their residence in the State, without further proof of these facts. And while the service on the husband is authorized only when the husband and wife are residents and live together, the presumption is that they did live together and hot apart, as marital duty, both moral .and.legal, harmonizing with general custom, would naturally dictate. We can not assume the contrary for the purpose of reversing the decree.

The record shows a regular decree pro confesso taken in due form against both of the defendants. This record can not be changed or dominated by the “bench-notes” of the chancellor, which show an order for such decree only against James A. Gladden, the husband. They are mere memoranda, which can not prevail against the more solemn and regular recitals of the amplified record. The motion to amend the decree nunc pro time based on this evidence was properly overruled. If it had been sustained its legal effect would have been to strike out of a final decree, after adjournment of the court rendering it, the name of a material defendant, thus entirely annulling the force of the decree against a party whose rights had been adjudged after her day in court. This can Dot be done.

The chancellor properly refused to delay the cause by referring it to the register to report how much and what part of the mortgaged land should be sold to satisfy the mortgage debt. He pursued the usual and proper practice in directing the register to sell only so much of the land as was necessary to satisfy the decree, and which could be sold with least injury to the defendants. This was all the defendants had a right to ask, and dealt exact justice to all parties.

We discover no error in the record, and the decree is affirmed.